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Haran Chandra Saha and anr. Vs. Behari Lal Bhumia and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1928Cal560
AppellantHaran Chandra Saha and anr.
RespondentBehari Lal Bhumia and ors.
Cases ReferredIn Ram Lochan Koer v. Jagarnath Misir
Excerpt:
- .....holding have obtained the right of ejecting the defendants as transferees of that newly-formed holding. the defendants on the other hand contend that the effect of the partition is to divide the landlord's interest in the lands among the cosharer landlords, but not to destroy the character of the holding as it stood before. in my opinion the view taken by the courts below seems to be correct and should be upheld. under section 81, estates partition act, the right to split up for the purposes of partition any tenure or holding is given to the collector. but the right should be exercised only when it is reasonably necessary to do so in order to effect an equitable partition. and further, if the tenure or holding is split up, the existing rent should be apportioned among the several.....
Judgment:

Suhrawardy, J.

1. This appeal arises out of a suit by the plaintiffs for eject meat of defendants 1 and 2 from the lands in suit on the allegation that the holding was abandoned by the former tenants and the defendants as transferees from them of the holding which is a non transferable one are liable to be ejected. The plaintiffs were cosharer landlords with some other persons in respect of a holding within more than one estate. The original tenants Kokai and Mehar Ali transferred to the defendants appellants a portion of the holding comprising settlement plots 189 and 190 of mauza Kedarpur appertaining to Estate No. 4054 and the defendants were in possession of that portion of the holding. Subsequently there was a partition of this estate under the Estates Partition Act among the cosharer landlords of the holding. The disputed plots fell to the saham of the plaintiffs alone. Thereupon the plaintiffs claimed ejectment of the defendants on the ground that they were trespassers being the transferees of a nontransferable occupancy holding. Both the Courts below have decreed the suit.

2. Defendants 1 and 2 have appealed and it has been argued on their behalf that the view of the law taken by the Courts below is erroneous and should be reversed. The sole point involved in this case is one of construction of Section 81, Estates Partition Act 5 of 1897 Bengal Council. The plaintiffs' case is that before the holding was split up by the Collector among the different cosharers, the defendants being transferees of a portion of it, the plaintiffs had no right to eject them. But after the partition the plots now in possession of the defendants being allotted solely to the plaintiffs formed into a new holding and the plaintiff being the sole landlords of that holding have obtained the right of ejecting the defendants as transferees of that newly-formed holding. The defendants on the other hand contend that the effect of the partition is to divide the landlord's interest in the lands among the cosharer landlords, but not to destroy the character of the holding as it stood before. In my opinion the view taken by the Courts below seems to be correct and should be upheld. Under Section 81, Estates Partition Act, the right to split up for the purposes of partition any tenure or holding is given to the Collector. But the right should be exercised only when it is reasonably necessary to do so in order to effect an equitable partition. And further, if the tenure or holding is split up, the existing rent should be apportioned among the several parts into which it is divided. The section further provides that before such a division of the tenure or holding is effected notice ought to be served on the tenants and that objections by them, to such division should be heard. The provisions standing by themselves clearly indicate that the law confers upon the partition authorities the power to divide any tenure or holding into separate parts apportioning the rent to be attached to each such part and giving an opportunity to the tenants to raise any objection to such division. All these provisions are-necessary only in a case where it is proposed to create several holdings out of one holding. If, the intention was to keep the holding intact and only to divide the superior interest of the landlords it would not have been necessary to hear the-tenants with reference to the division. The word used in the section is 'split' which lexicographically means to cause to part asunder or to divide by a quick or sharp cut.' The addition of the word 'up' intensifies the meaning of 'split' and it has been used in my judgment in the sensa of severing completely in several parcels the holding which before the partition was held under several persons. This, view has been taken by this Court in the case of Protap Chandra Das v. Kamala Kanta Shaha [1906] 10 C.W.N. 818. The facts are similar to those in this case-with a slight difference to which reference will be made below. The learned Judges observed that

the partition made by the Collector had the affect of dividing the old holding into new ones and the plaintiffs became the sole landlords of 5 kanis held by the defendants and which defendant 6 clearly had abandoned.

3. I This case has been attempted to be distinguished on the ground that in that case the Collector had made the partition before the defendants' purchase. I fail to see what difference in principle a which underlies the decision this fact is calculated to make. From the judgment it does not appear that this special fact had any influence on the view which was taken of the law in that case. The mere fact that the Collector proposes allotment does not change the position of the parties before such allotment is sanctioned by the higher authorities. It makes no difference whether the defendants entered upon the land previous to the allotment made by the Collector or after it. There is an unreported decision of this Court which was placed before the lower appellate Court and which took the same view, though in that case it was subsequent to Protap Chandra Das's case [1906] 10 C.W.N. 818 the latter case was not cited. It has got this merit that two other learned Judges of this Court came to the same conclusion independently and uninfluenced by the view taken in the previous case. In Appeal from Appellate Decree No. 1425 of 1907, decided on 14th April 1909, Chitty and Vincent, JJ., observed that it was urged before them that the Deputy Collector had no power to split up the holding of the original tenants for the purposes of partition but no tangible reason had been given to show why he had not that power.

4. According to the learned Judges Section 81, Estates Partition Act, 1897 distinctly gave him that power though, no doubt, it imposes the condition that it must be reasonably necessary to exercise it. Then in dealing with the defendants similarly situated as 'in this case their Lordships observed:

The main argument for the appellants was that, having been recognized by the cosharers of the plaintiff, they were in the position of joint tenants, of the whole jote including that portion of it which fell to the plaintiff's share; but we cannot accede to this argument. If the partition was duly effected and the holding split up the plaintiffs' portion of that holding would become a complete jote in itself and Baku and Naimuddi (the original tenants) would have no right to sell their interest in that to the predecessors of defendants 1 to 4 who could not claim to be the tenants of the plaintiff and her cosharers in that land. It would not be a case of transfer of a portion of a holding the remainder being held under the same landlord, but it could be a transfer-of a complete jote and Baku and Naimuddi having ceased to occupy that jote, to pay rent for it, or to have any connexion with it may fairly be held to have abandoned it in which case the landlord had a right to re-enter.

5. This case in all its facts is similar to the one before us as it is claimed by the appellants in this case that they were recognized by all the cosharer landlords except the plaintiffs and such as they could not be ejected from the lands in suit. Then it is attempted on behalf of the appellants to distinguish the unreported case on the same ground as the case of Pratap Chandra Das [1906] 10 C.W.N. 818, as it appears from the statement of facts in the judgment that the defendants-appellants in that case had purchased the portion of the holding after the proposed allotment by the Deputy Collector. As I have said before, this fact has nothing to do with the application of the law and does not seem to have in any way affected the conclusion of the learned Judges. Against these decisions of this Court certain decisions of the Patna High Court have been cited before us. They are reported in a series of reports called Indian Cases which do not seem to be authorized reports. The attention of the Courts has been drawn on several occasions to the desirability of avoiding citing oases from unauthorized reports specially of cases of other High Courts as there are no means available to check the correctness of the reports and of the facts stated there. But as the point is of some interest we have looked into those reports and considered the arguments in the judgments of those cases. The decision in Suraj Deo Narayan Singh v. Pachh Narain Singh [1917] 2 Pat. L.J. 225, takes a view at variance with that expressed in Protap Chandra Das's case [1906] 10 C.W.N. 818. But it appears that the decision of this Court was not cited before their Lordships of the Patna High Court. The view expressed by the learned Judges in the Patna case may be treated as obiter on the facts of the case as it was a case in which the occupancy holding was found to be a transferable one. Another case of that Court is to be found in Radha Kishun v. Bhagwat Prasad [1917] 1 Pat. L.W. 19, decided by the same learned Judges.

6. There also no case was cited and the learned Judges did not discuss the point beyond making an observation that the partition between the maliks did not give the plaintiffs a right to treat the transfers of parts of holdings as transfers of the entire holdings merely because those parts were allotted to his patti at the partition. I am unable to follow the view taken in those oases and I am of opinion that the interpretation of the Act which appealed to the learned Judges of this Court is more convincing. It appears that the Patna High Court too is not unanimous on this point. In Ram Lochan Koer v. Jagarnath Misir [1917] 1 Pat. L.J. 270, Mullick, J., took a different view and followed Protap Chandra Das's case [1906] 10 C.W.N. 818 of this Court. The learned Judge went further to say that even if there were private partition among the landlords the effect would have been the same as in a partition under the Estate Partition Act.

7. The learned Subordinate Judge in his considered judgment has referred to the various inconveniences which would flow from the adoption of a contrary view. Thus he says:

If it is held that the defendants are entitled to remain on the laud, the effect would be that the plaintiffs would be compelled to recognize the transfer although they did not recognize it. They, can no longer sue the old tenants.... There can be no gainsaying the fact that the defendants had no interest in the lands before partition (as against the plaintiffs).... It would be conferring an interest on them by partition if they are allowed to remain on the lands and the plaintiffs are compelled to receive rent from them.

8. If the appellants' contention be allowed to prevail the plaintiffs would be compelled to recognize the defendants as their tenants although the relation between them was not created either by contract or by operation of law. The position seems to me to be absurd and must be relieved against. As against the plaintiffs the defendants-appellants have acquired no title or interest although the plaintiffs for the time being had no right to evict them, as under the law they had no right to re-enter unless the entire holding had been transferred by the original tenants. But so soon as they acquired, instead of a share of the rent to which they were entitled, a specified portion of the lands comprised in the holding they obtained the right to enter on it if they found it to be in the occupation of a trespasser, Considering all the circumstances and there being clear authorities of this Court which are binding upon me, I hold that the view taken by the Courts below is correct in law.

9. This appeal, accordingly, is dismissed with costs.

Graham, J.

10. I agree.


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